Citation Nr: 0808480
Decision Date: 03/13/08 Archive Date: 03/20/08
DOCKET NO. 06-08 760 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Whether new and material evidence has been received
sufficient to reopen a claim for entitlement to service
connection for residuals of injuries resulting from a
February 3, 1978 motor vehicle accident, and if so, is there
a basis to allow the claim.
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
N. Kroes, Associate Counsel
INTRODUCTION
The appellant served on active duty for training from July
1977 to December 1977. The appellant was a member of the
United States Marine Corps Reserve until December 1978.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from the Hartford, Connecticut, Department of
Veterans Affairs (VA) Regional Office (RO).
The appellant has on multiple occasions claimed entitlement
to service connection for various residuals of injuries
resulting from a February 3, 1978 motor vehicle accident. In
the most recent statement of the case, issued in May 2005,
the issue was identified as "whether new and material
evidence has been submitted to re-open a claim for service
connection for injuries sustained while on Active Duty For
Training." It is held herein that new and material evidence
has been submitted, and that further development is then
needed on the basis of whether the claim could be allowed.
The issue on the cover page have been changed to more
accurately reflect the appellant's contentions.
The reopened issue of entitlement to service connection for
residuals of injuries resulting from a February 3, 1978 motor
vehicle accident is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Service connection for residuals of injuries resulting
from a February 3, 1978 motor vehicle accident was most
recently denied by a January 1991 administrative action. The
appellant was notified of this action and of his appeal
rights at that time and did not appeal the action. It was
held that the evidence did not show that he was enroute to
active duty for training in the United States Marine Corps
Reserve at the time of the motor vehicle accident in February
1978. The January 1991 administrative action is final.
2. The evidence received since the January 1991
administrative action raises a reasonable possibility of
substantiating the claim as the appellant has submitted new
evidence showing that he was enroute to a Marine Corps
Reserve meeting at the time of the February 3, 1978 motor
vehicle accident.
CONCLUSIONS OF LAW
1. A January 1991 administrative action denying the
appellant's claim for entitlement to service connection for
residuals of injuries resulting from a February 3, 1978 motor
vehicle accident is final. 38 U.S.C.A. § 7105 (West 2002);
38 C.F.R. §§ 20.201, 20.302 (2007).
2. New and material evidence to reopen the appellant's claim
for entitlement to service connection for residuals of
injuries resulting from a February 3, 1978 motor vehicle
accident has been received since the January 1991
administrative action. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In
this case, the Board is reopening the appellant's claim for
entitlement to service connection for residuals of injuries
resulting from a February 3, 1978 motor vehicle accident,
which is considered a grant in full of the benefit sought as
concerns this issue. Thereafter, the claim on the merits is
being remanded in part to ensure compliance with the VCAA.
Accordingly, assuming, without deciding, that any error was
committed with respect to either the duty to notify or the
duty to assist, such error was harmless and will not be
further discussed.
II. New & Material Evidence
The Board, in the first instance, must rule on the matter of
reopening a claim. The Board has a jurisdictional
responsibility to consider whether it is proper for a claim
to be reopenedbecause reopening is a jurisdictional
determination. Jackson v. Principi, 265 F.3d 1366 at 1369
(Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380
(Fed. Cir. 1996).
A claimant may reopen a finally adjudicated claim by
submitting new and material evidence. New evidence means
existing evidence not previously submitted to agency decision
makers. Material evidence means existing evidence that, by
itself or when considered with previous evidence of record,
relates to an unestablished fact necessary to substantiate
the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the
time of the last prior final denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a).
When determining whether the appellant has submitted new and
material evidence to reopen a claim, consideration must be
given to all the evidence since the last final denial of the
claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans,
the Court indicated that the newly presented evidence need
not be probative of all the elements required to award the
claim, but need only tend to prove each element that was a
specified basis for the last disallowance. Id. at 284.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
duty for training or injury incurred in inactive duty for
training. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002);
38 C.F.R. § 3.303(a) (2007). The period of travel to and
from a period of active or inactive duty for training can be
included as part of the training duty.
For service connection purposes, the term "veteran" means a
person who served in the active military, naval, or air
service and who was discharged or released therefrom under
conditions other than dishonorable. 38 U.S.C.A. § 101(2)
(West 2002); 38 C.F.R. § 3.1(d) (2007).
The term "active military, naval, or air service" includes
active duty, any period of active duty for training during
which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in the line of duty,
and any period of inactive duty training during which the
individual concerned was disabled or died from an injury
incurred or aggravated in the line of duty. 38 U.S.C.A.
§ 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2007).
The appellant asserts that he has residuals from injuries
resulting from a February 3, 1978 motor vehicle accident. He
contends that when the accident occurred he was on his way to
active duty for training in the United States Marine Corps
Reserve. The problem with the claim historically has been
that his active duty for training is shown to have ended and
he is then carried as a member of the Reserve but no orders
or other official documentation of any type of training on
February 3, 1978 have been found or produced.
In June 1985, the appellant originally claimed entitlement to
service connection for residuals of injuries sustained in a
February 3, 1978 motor vehicle accident. That claim was
denied in a March 1986 letter because it was not shown that
the appellant was enroute to a reserve meeting, or that the
appellant had a reserve meeting to be enroute to on the
evening of February 3, 1978.
In 1990, the appellant submitted what he described as
"orders" to report to drill and attempted to reopen the
claim. The orders were dated the year after the motor
vehicle accident and were not specifically addressed to the
appellant. In a December 1990 letter VA disallowed the
appellant's claim. Later that month, the appellant submitted
a statement relaying that he believed that the date of the
orders was a typographical error, and also reasserting his
contentions. In January 1991 the appellant was sent a letter
stating that his claim remained denied because new and
material evidence had not been received to show that he was
enroute to a drill meeting at the time of the motor vehicle
accident, and there was no official evidence that he was to
be on any type of duty on the date in question. A notice of
procedural and appellate rights was enclosed with the letter.
The appellant did not file a notice of disagreement with the
January 1991 administrative action; thus it has become final.
See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302.
The Board notes that its task is to first decide whether new
and material evidence has been received, as opposed to
whether or not the evidence actually substantiates the
appellant's claim. Since the January 1991 administrative
action, the appellant has submitted new evidence, including
statements from two of his sisters, his girlfriend at the
time of the accident, and his mother and father. These
letters essentially state that the appellant's father
received notice from the appellant's commanding officer that
the appellant was to report immediately for snow removal
duty. The letters state that the appellant's father called
him at his mother's house to tell him this and that he then
decided to drive with his two sisters to his father's house
to drop them off, and pick up either his orders, military
gear, or both. The appellant was in a motor vehicle accident
on the way from his mother's house to his father's house.
This is an event that the parties are competent to comment on
and the comments are presumed credible for the purposes of
reopening. Thus, based on the presumption of credibility for
the purposes of reopening, this is considered new and
material evidence.
ORDER
New and material evidence having been received, the petition
to reopen the claim for entitlement to service connection for
residuals of injuries resulting from a February 3, 1978 motor
vehicle accident is allowed. To this extent, the claim is
granted.
REMAND
As explained above, the appellant's claim for entitlement to
service connection for residuals of injuries resulting from a
February 3, 1978 motor vehicle accident has been reopened.
As noted above the problem with the case has been, and
despite the reopening remains, there is no official document
that indicates that the appellant was called for or was
otherwise scheduled for any type of training on February 3,
1978. The "orders" sent in are date in January 1979 and
refer to training in February 1979. The year "1979" is
used numerous times in the document and there is an
annotation that February 2, 3, and 4 in 1979 were a Friday,
Saturday, and Sunday. In 1978, those dates were a Thursday,
Friday, and Saturday. The 1979 date is more consistent with
"weekend" training and makes the most logical sense given
the internal consistency of the document.
It remains at issue, therefore, whether there was any type of
duty scheduled on February 3, 1978. There are very few
administrative documents on file. One computer printout
suggests and entry on duty date of July 1977 and a release
from duty date of February 3, 1978. Nowhere else in the
records does this release from duty date appear.
There is no line of duty report on file. It is indicated
that there was a VA Record Management Center in St. Louis
that might have those records. It is not shown clearly that
they were ever contacted for information.
In view of the reopening, and the more recently legislated
duties to assist since the last denial, there needs to be an
additional attempt to ascertain whether there was some sort
of duty on the date in question.
Finally, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), the VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2007). The AMC/RO should take this opportunity to
ensure that the appellant has been given proper notice and
assistance as is required by the VCAA, its implementing
regulations, and interpretative precedent Court decisions.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should review the record
and ensure that all notification and
development is completed as required by
the VCAA, its implementing regulations,
and interpretative precedent Court
decisions. A VCAA compliant notification
letter should be issued for the
appellant's claim for entitlement to
service connection. The appellant and his
representative should have the opportunity
to respond.
2. The AMC/RO should obtain from the SSA
any relevant disability determinations for
the appellant and all underlying records
associated with the determinations. All
records/responses received should be
associated with the claims file.
3. The AMC/RO should attempt to contact
that appellant's reserve unit and attempt
to ascertain whether his unit was called
to some type of training, either on an
emergency or regularly scheduled basis, on
February 3, 1978. The reserve unit, and
any other appropriate locations should be
contacted to ascertain whether duty was
scheduled for that date. If it is not
possible to ascertain that there was
training, all attempts to obtain the
records should be reflected in the claims
folder.
4. Thereafter, the appellant's entire
file should then be reviewed, including
the additional evidence submitted by the
appellant and any other evidence obtained,
and his claim readjudicated. If any
benefit sought on appeal remains denied,
the appellant and his representative
should be furnished an appropriate
supplemental statement of the case and
afforded the opportunity to respond.
Thereafter, the case should be returned to the Board in
accordance with applicable procedures.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs